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2007 DIGILAW 1651 (ALL)

JANKI DEVI (SINCE DECEASED) v. VINOD KUMAR JAIN

2007-05-25

SUNIL AMBWANI

body2007
JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri Murlidhar, Sr. Advocate assisted by Shri S.S. Chauhan for the appellants and Shri M.K. Gupta appears for the respondent. 2. This second appeal arises out of Original Suit No. 418 of 1979 filed by Janki Devi and others-plaintiff appellants in the Court of Munsif Haveli, Aligarh for specific performance of an agreement of repurchase. The suit was dismissed by the Trial Court on 28.3.1984. The plaintiff appellants’ civil appeal No. 97 of 1984 was dismissed by the Addl. Civil Judge, Aligarh by judgment dated 20.2.1985. 3. Briefly stated the plaint allegations are that the husband of plaintiff No. 1 and plaintiff Nos. 2 to 7 were owners and in possession of 3/4th portion of the land in dispute. The plaintiffs’ father executed a registered sale-deed dated 27.4.1974 in favour of the defendant on the same day and an agreement of repurchase was executed with the condition that within six years the defendant shall get a sale-deed executed in favour of plaintiffs’ father on receiving Rs. 10,000/- as sale consideration and in case they do not execute the sale-deed, the defendant Daulat Ram shall deposit Rs. 10,000/- in Court and will be entitled for execution of the sale-deed in his favour. The defendant Daulat Ram approached the plaintiffs with Rs.10,000/- as consideration for repurchase but the plaintiffs’ father did not execute the sale-deed. It was alleged that defendant was always ready and willing to perform his part of contract and gave a registered notice dated 27.7.1979 to the plaintiffs’ father for appearing before the Sub-Registrar, Aligarh on 16.8.1979 and to execute the deed of repurchase on receipt of Rs. 10.000/-. The notice was received but the plaintiffs’ father did not appear. The plaintiff was present in the Court at the seat of his Counsel from 10.00 a.m. to 4.00 p.m. and also made an application of his presence in the office of the Sub-Registrar. 4. In the written statement the defendant denied the execution of agreement of repurchase and the notice dated 31.7.1989. The defendant stated that plaintiffs’ father was in need of money and as such he executed an agreement dated 27.4.1974. He took Rs. 5000/- on the next date on 27.4.1974 and got the agreement of repurchase dated 27.4.1974 cancelled. 4. In the written statement the defendant denied the execution of agreement of repurchase and the notice dated 31.7.1989. The defendant stated that plaintiffs’ father was in need of money and as such he executed an agreement dated 27.4.1974. He took Rs. 5000/- on the next date on 27.4.1974 and got the agreement of repurchase dated 27.4.1974 cancelled. The defendant had filed suit No. 392 of 1976, Daulat Ram v. Shri Vinod Kumar Jain, in the Court of Munsif, Koil for cancellation of agreement dated 27.4.1974. In the suit the application for interim injunction was rejected. The Misc. Appeal No. 75 of 1977, Daulat Ram v. Vinod Kumar was dismissed on 11.2.1978. Daulat Ram did not ask for any other relief except for possession over the suit land. The Suit No. 392 of 1976 is as such barred by Order II Rule 2 CPC. Suit No. 392 of 1976 was dismissed on 12.3.1989 for want of prosecution. The plaintiff did not mention about any such agreement of repurchase as he has accepted Rs. 5000/- for cancelling the agreement on 28.7.1974. 5. The appeal was admitted on the substantial questions of law as follows : (1) Whether the plaintiff would not be entitled to the relief of” specific performance in view of the earlier suit No. 392 of 1976 filed by him for cancellation of the sale-deed executed by the plaintiff in favour of the defendant and simultaneous execution of the agreement in dispute in this appeal on the ground of fraud? (2) Whether the finding of the Court below on the question of readiness and willingness of the plaintiff to perform the agreement is erroneous? (3) Whether the alleged relinquishment deed set up by the defendants requires registration? 6. The Trial Court while deciding issue Nos. 1 and 4 regarding the cancellation of agreement of repurchase and the validity of said agreement dated 28.7.1974 held that the agreement came to an end on receipt of Rs. 5000/- by which the rights of repurchase was given up. On issue No. 2 the Trial Court held that the defendant was mot always ready and willing to execute the sale-deed nor he had sufficient money. Daulat Ram did not mention about the agreement of repurchase in suit No. 392 of 1976 and thus the suit is barred by Order II Rule 2 CPC. 7. On issue No. 2 the Trial Court held that the defendant was mot always ready and willing to execute the sale-deed nor he had sufficient money. Daulat Ram did not mention about the agreement of repurchase in suit No. 392 of 1976 and thus the suit is barred by Order II Rule 2 CPC. 7. In the civil appeal the appellate Court framed two issues namely whether the agreement dated 28.7.1974 cancelling the agreement of repurchase was executed by Daulat Ram and whether this document could be admitted in evidence for want of registration and secondly whether the plaintiff appellant’s husband Daulat Ram and plaintiff Nos. 2 to 5 was ready and willing for agreement of repurchase and had sufficient money with him. 8. The appellate Court discussed the expert evidence and found that permission of the Court was not taken before taking specimen photograph of the signatures on the disputed agreement. Thus expert evidence could not be relied upon. The plaintiff appellant did not state that this agreement was entered into by playing fraud or that he had not signed or affixed his thumb impression on the agreement. In his replication he simply stated that he had not accepted Rs. 5000 from the defendant on 28.7.1974 and that the document dated 28.7.1974 is forged and fabricated document. Late Daulat Ram, husband of plaintiff appellant No. 1 and father of plaintiff appellant Nos. 2 to 7 had earlier filed a suit No. 392 of 1976 for cancellation of the sale-deed in which he alleged that a fraud was played with him and he was not paid the money. Thereafter he stated that he had got the agreement of repurchase executed on the same day. He could not have made such a contradictory statements. The appellate Court doubted the integrity and character of Daulat Ram on the ground that he had made inconsistent statement in Court. 9. The appellate Court found that the document by which the agreement of repurchase was cancelled was not registered. The appellate Court held that cancellation of this document was not for sale of immovable property but was executed for giving up the rights of repurchase and thus the document was not required to be registered. The payment of Rs. 5000/- was not by way of sale consideration but for giving up rights of repurchase. 10. The appellate Court held that cancellation of this document was not for sale of immovable property but was executed for giving up the rights of repurchase and thus the document was not required to be registered. The payment of Rs. 5000/- was not by way of sale consideration but for giving up rights of repurchase. 10. Shri Murlidhar, learned Counsel for the petitioner submits that agreement of repurchase was not denied. It was executed on the same day when the sale-deed was executed and thus it was necessary to prove the document 46-Ga by which right of repurchase was given up on the alleged payment of Rs. 5000/- and that document required registration as it concerned with the cancellation of an agreement of repurchase. 11. Section 17 of the Registration Act, 1908, provides for, compulsory registration on documents, which creates interest in the immovable property. Sub-section (1) (f) of Section 17 provides that the documents, which are required by any law for time being in force to be registered are also required to be registered. Sub-section (2) (v) provides that any document other than contract of sale, not by itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document, which will, when execute, create, declare, assign, permit or extinguish any such right, title or interest, is not required to be registered. The document ’46 Ga’ by which right to repurchase was given up was not required either by any law, nor created or extinguished any right in property. It was as such not required to be registered to be admitted in evidence. 12. The finding that in earlier suit for cancellation of the agreement and for possession Daulat Ram, father of plaintiff appellant did not refer to the agreement and made inconsistent statement, was sufficient evidence against the agreement of repurchase. The document dated 28.7.1974 (paper No. 46 Ga) was proved on record by both the admission of Shri Daulat Ram as well as oral evidence. The findings on these issues as such are findings of fact, which do not call for any interference from this Court. Both the substantial questions of law framed by the Court on 16.2.1987 are as such decided against the plaintiff appellant. 13. The second appeal is consequently dismissed with costs throughout. ————